Thursday, 1 November 2012

By most measures the popular vote for the presidential election is almost tied (with perhaps a slight edge for Obama). Nonetheless, electoral college predictions, such as FiveThirtyEight, give Barack Obama a high probability of retaining the White House due to a lead in swing states, particularly Ohio.

This means there's a non-trivial possibility that we'll see the reverse situation of Al Gore's 2000 loss of the electoral college, even while winning nearly half a million more votes than George W. Bush. This year, Obama could well win Ohio, and therefore the electoral college, while gaining the support of fewer Americans than Mitt Romney.

If this does happen, it raises interesting prospects for constitutional reform. Despite strong public support, it's very unlikely that electoral college reform would passas a constitutional amendment - with a two-thirds majority support through both houses of Congress and then the support of three-fourths of the States required to ratify it. But it could put new momentum into a quieter approach to electoral college reform that has been slowly making progress -the National Popular Vote Interstate Compact (NPVIC).

This approach to reform takes advantage of the constitutional clause allowing states to appoint electors in the manner of their choosing. The NPVIC approach is to make states pass laws to give all their electoral college votes to the winner of the national popular vote, but this only goes into effect if states with a combined 270 electoral college votes – the number of electoral votes required to win the presidency - also pass laws promising to do so. This would guarantee that the popular vote would always determine the presidency.

So why might we expect an Obama win to push the NPVIC plan over the 270 threshold? It turns out that states making up 132 electoral votes have already passed the bill: Maryland, New Jersey, Illinois, Hawaii, Washington, District of Columbia, Vermont, Massachusetts and California. The first thing that's obvious about this list is that it's heavily skewed towards Democratic states still smarting from Gore's 2000 defeat.

But if Obama wins it's not Democrats but Republicans who will be decrying the illegitimacy of the president (as they sometimes do already), and passing the NPVIC might seem the perfect way to push that agenda.

So if Obama wins, which states might be most likely to pass the NPVIC? At the moment the electoral college rewards several things:

Small States:the extra two electoral college votes that each states receives due to its Senate delegation go a long way for small populations. Wyoming has just 0.2% of the US population but 0.6% of its electoral college votes. This bias leads candidates to campaign more heavily in small rural states than would make sense tootherwise.

Swing States: the other major beneficiaries of the current system are swing states. If a state could plausibly swing to either party there's a very good chance that the candidates will find lots of enticing things to offer its voters.

With that in mind, the likeliest candidates for passing the NPVIC would be large Republican states. Perhaps Texas (38), Georgia (16), Tennessee (11), Arizona (11), South Carolina (9), Alabama (9), Louisiana (8) and Kentucky (8). In total that gives us an extra 110 electoral votes bringing us to 242 total. Close, but still 28 votes short of the magic 270 required to pass the proposal.

From here we'll either need a lot more small Republican states or one or two additional large states.

For the small states approach we would need to convince Oklahoma (7) Mississippi (6), Arkansas (6), Kansas (6) and Nebraska (5) for an extra 30 votes pushing us to 272. But some of these would probably be reluctant to undermine the attention paid to rural states by candidates.

Florida or New York alone would be sufficient. But New York is heavily Democratic and unlikely to want to undermine Obama at the start of his second term. Florida meanwhile might be reluctant to give up the political attention that comes with its decisive role in presidential elections. Outside of these, two states would be needed to seal the deal. One of these might be North Carolina. While it went for Obama in 2008, it has looked solidly Republican throughout this electoral cycle and is controlled by Republicans at the state level. With North Carolina's 15 electoral votes, it would then only take a few more votes to push the NPVIC reform through.

So the NPVIC might just become viable if Obama wins a second term despite a loss in the popular vote. But even with support from large Republican states, NPVIC reform will still require some help from the beneficiaries of the current system.

Given the huge impact of the electoral college on American history, a change in this system could end up being the biggest legacy of Obama's second term.